The platinum anniversary of the most important shift in American child welfare policy in a generation just passed without notice or public discussion. But almost 20 years to the day after President Clinton signed the Adoption and Safe Families Act into law, those in the waiting area of the Bronx Family courthouse heard a 12-year-old sobbing inconsolably outside the courtroom, where he had just told the judge he did not want to be adopted. The judge had gone ahead anyway to terminate his mother’s parental rights—as judges around the country do tens of thousands of times a year to comply with ASFA.
Touted at the time as a victory for children, ASFA has instead put America first in the world in the legal destruction of families. We are now the only country in the world that routinely pays people to adopt children whose birth parents want desperately to raise them. And we turn thousands of children who will never be adopted into legal orphans, dooming them to remain in foster care until they come of age.
With striking similarity to the 1994 Crime Bill, ASFA was a draconian response to a real social problem. Just as crime was skyrocketing, so too was the number of kids caught in foster care— both fed by an increase in economic disparities, urban decay and drug abuse. Like the Crime Bill, ASFA addressed these social problems by punishing those who were suffering most from them. Twenty years later, we have a child welfare system that, like our system of mass incarceration, pours unprecedented funds into an industry that destroys families and wreaks generations of damage on underprivileged communities. The racial disproportionality of these harms is undeniable, with Black children substantially more likely than white children to have their relationships to their parents severed.
Sometimes, of course, children need to be separated from their families to protect them. But the vast majority of children who enter foster care in the United States do so not because their parents have abused them, but because their parents are poor. Homelessness, lack of child care, domestic violence inflicted on mothers and substance abuse are the most common reasons children go into foster care.
ASFA was motivated by a well-founded concern that children were spending too long in foster care. Momentously, a choice was made to get them out of foster care primarily by creating financial incentives for adoption. Under ASFA, states receive monetary bonuses for getting children adopted quickly, and the federal government pays ongoing subsidies each month to those who adopt children from foster care. Today the United States spends an astonishing $2.6 billion per year subsidizing more than 440,000 adoptions. The Congressional Budget Office anticipates that amount will rise dramatically over the next 10 years.
Of course, sometimes adoption is the very best possible outcome for a child, but at other times it is harmful to impose one-size-fits-all adoptions. Many of these children remain strongly bonded to their birth parents. Some run back to them from their adoptive homes as soon as they are able to.
In addition, ASFA’s unquestioning emphasis on rushing to adoption means this country now annually terminates the rights of thousands of parents of children who will never be adopted.
What steps could be taken to reduce the harms of ASFA? We could take the steps that other affluent democracies take to help protect poor children: provide universal child care, housing and drug treatment and mental health care that allows parents to address the predictable social ills of poverty while their children remain with them. Those who balk at the cost of such social programs should understand that we are already spending the money. We’re simply spending it on keeping children in foster care and subsidized adoptive homes rather than on keeping them safe at home.
We also could revamp the draconian timeframes imposed by ASFA. We would never say that middle class white parents’ relationships to their children should be cut off forever because the parent suffered from an alcohol problem or opioid addiction or mental health issue that the parent did not wholly overcome in 15 months, as ASFA commands for poor families.
The 12-year-old who tried in vain to convince the Bronx judge to give his mother more time went into foster care because his mother was a victim of domestic violence. She worked hard to get him back, visiting him frequently and doing therapeutic services, but not quickly enough.
A growing swell of Republicans and Democrats alike have admitted we must address the troubling mass incarceration that is the legacy of the crime legislation they supported in the 1900s. It is time to give the same unflinching attention to the children and families being damaged by the unintended consequences of ASFA. Twenty years of unquestioned, systematic harm is enough.
Chris Gottlieb teaches the NYU School of Law Family Defense Clinic.